Active Restriction System Of Public Prosecution Power Reseach

The public prosecution right from scratch is a gradual progress of the rule of law.Positive public prosecution right is a kind of the prosecution right that we have often said.Positive prosecution right belongs to the right of public prosecution, classification of a, iswhat we often say that the prosecution, which procuratorial organ actively to the criminal, tomeet the conditions of the prosecution cases prosecuted, sent in court to support the publicprosecution, prosecution and appeal power change. In criminal proceedings, the role of thepositive public prosecution right embodies in its advance effect in the process of proceedings,but the procuratorial organs have a relatively great free limited right in the exercise of thepositive public prosecution right, which being abused easily under the system of freeevaluation of evidence because the boundary of such a discretion reflects larger ambiguity.In the actual judicial practice, there have been a lot of abuses of positive publicprosecution right, such as differential prosecution, retaliatory prosecution and re-prosecution.Once the positive public prosecution right is abused, it will bring irreparable damage to thecitizens’ lives, liberty and property safety, as well as the interests of the society and the state.Therefore, to reformation and improvement of the restriction mechanism of the positivepublic prosecution right is significant to the promotion of the realization of judicial justice,protection of the rights of the citizens and the long-term social stability.In order to restrict the positive public prosecution right, both the two major capitalistcommon law countries set the related restriction mechanism in legislation. The setting of thejudicial review procedure in the public prosecution field is the generally adopted practice bythe two major legal systems. Through checks and balance, the pre-trial procedures of the UKand France, the intermediate program of Germany, as well as the grand jury prosecution andpre-trail in district court of the United States, all make the exercise of the right to sue wasplaced under judicial restraint, in order to inhibit improper indictment filed. If the case doesnot meet the prosecution conditions through this judicial review procedure, the prosecutionmay be ruled to be quashed or the case is not transferred to trial. Those cases without adequate investigation which lack the necessary evidence will be intercepted outside of theformal court, on the one hand, it will make citizens immume from undue prosecution, so as toachieve the effect of protecting human rights, on the other hand, it will realize the diversion ofcases, so as to save judicial resources.Compared with the two major common law countries, there are shortages in ourrestriction mechanism of the public prosecution right in many respects. The embodiments are:the right to defense of the person being prosecuted is not fully realized, the lack of constraintswithin the procuratorial organs and the imperfection of the courts’ restriction on the positivepublic prosecution right. So in the improvement of our restriction mechanism of the positivepublic prosecution right, we should focus the reform on the above aspects. On the basis ofadhering to the principles of the rule of law, the principle of equality, the principle of judicialaccountability, the principle of objective prosecution, the principle of participation and theprinciple of proportional prosecution and defense, we conduct the following reforms:establish the principle of integrated inspection, strengthen the internal constraints of theprocuratorial organs; reform pre-trial procedure, establish the pre-trial system; give theprosecuted the right of program participation and program option; clear the state liability ofthe procuratorial organs and the legal liability of the prosecutors.